regulatory czar

Obama's regulatory czar: worse than I imagined

cmonforton — Thu, 04 Apr 2013 18:14:30 +0000

Obama's regulatory czar: worse than I imagined

On this blog, we've not minced words about the damaging impact on new worker safety and other public health regulations by the actions of the White House's Office of Information and Regulatory Affairs (OIRA). It began causing trouble for OSHA the moment it was created by President Reagan, and its interference continues to this day.

During those early hope-and-change days, I had my fingers crossed that our new President had a fresh vision about the role of his regulatory czar. But in January 2009 my hope was dashed when President Obama nominated law professor Cass Sunstein to lead OIRA. Sunstein was, afterall, the author of law review papers entitled "Is OSHA unconstitutional? and "Is the Clean Air Act unconstitutional?" During his tenure---Sunstein stepped down in August 2012---the regulatory czar made a habit of using proposed worker safety initiatives as examples of burdensome regulations. That was a real slap in the face. Safety and other labor protections for workers already get denigrated by conservatives in Congress and powerful business interests, we sure didn't need our Democratic White House piling on.

I've known for a long time that OIRA interfered in and delayed agency action----which has real consequences for individuals and families----but now I'm reading that it was probably worse than I imagined. Writing at Climate Progress, Georgetown law professor Lisa Heinzerling critiques Cass Sunstein's latest book which describes his experience as Obama's reg czar. Heinzerling notes:

"Rules on worker health, environmental protection, food safety, health care, consumer protection, and more all passed through Sunstein’s inbox. Some never left. A group of Department of Energy efficiency standards, for example, have languished at OIRA since 2011, as has an Occupational Safety and Health Administration rule to finally reduce exposure to the silica dust that sickens workers every year. In his revealing book, Sunstein tells us why."

She goes on, quoting from Sunstein's prose:

"It is because he, Sunstein, had the authority to “say no to members of the president’s Cabinet”; to deposit “highly touted rules, beloved by regulators, onto the shit list"; to ensure that some rules “never saw the light of day.”

Never saw the light of day?? So much for President Obama's promise for a rulemaking process that embraces public participation.

By Heinzerling's account, it sounds like Sunstein and his OIRA staff decided that they knew better than the regulatory agencies themselves.

"Assertive intrusions into agencies’ prerogatives — prerogatives given by law to the agencies, not to OIRA — were necessary, Sunstein insists, because otherwise agency decisions might be based not on 'facts and evidence,' but on 'intuitions, anecdotes, dogmas, or the views of powerful interest groups.'"

Heinzerling, who served in the Obama Administration at EPA during 2009 and 2010, offers this zinger:

"Most people, I would venture to guess, think that the person who runs, say, the Environmental Protection Agency is actually the Administrator of the Environmental Protection Agency. But given OIRA’s power to veto rules, the reality is otherwise: In the rulemaking domain, the head of OIRA is effectively the head of the EPA."

Bravo to Lisa Hienzerling for using the occasion of Sunstein's book to confirm my suspicions about Obama's OIRA, even if they are worse than I imagined.

cmonforton Thu, 04/04/2013 - 14:14

Slow progress by OSHA to improve worker health and safety regulations

cmonforton — Mon, 30 Jan 2012 14:00:00 +0000

Slow progress by OSHA to improve worker health and safety regulations

The Labor Department provided an update on January 20, 2012 to its regulatory agenda, including revised target dates for improved workplace safety and health standards. Several of the rules OSHA now expects to publish in 2012 are regulations the agency previously said would be issued one or two years ago. Missed deadlines, however, are nothing new for OSHA---an agency that has only issued two new major health or safety standards in the last 10 years.

To put these new projections from OSHA in perspective, I'll refer to forecasts made previously by the Obama/Solis Administration in 2009 and 2010.

Revising labeling and other requirements for chemical hazard to conform with globally harmonized standards (a final rule.) OSHA is now predicting a final rule will be published in February 2012. An earlier projection suggested the rule would be issued in August 2011. This rule seems to be one OSHA regulatory proposal that the White House favors, with the President's regulatory czar explaining it will save employers more than $2.5 billion in the next five years without compromising worker safety. Still, the rule has been "under review" at OMB for now more than the standard 90 days as prescribed in Executive Order 12866.

Protecting construction workers from toxic gases in confined spaces (a final rule.) OSHA is now projecting this final rule, with a history dating back to 1993, will be published in June 2012. Previously, OSHA forecast a November 2011 publication date.

Protecting construction workers from hazards in the construction of electric power transmission and distribution lines (a final rule.) OSHA is now projecting this final rule will be published in May 2012. Previously, OSHA forecast a September May 2011 publication date.

Protecting workers exposed to crystalline silica (a proposed rule.) OSHA is now projecting this proposed rule will be published for public comment in February 2012. Two years ago, the agency forecast publication of a proposed rule in July 2010. A year ago, OSHA submitted a draft proposed rule to the Office of Management and Budget (OMB) for review, but now nearly a year later, it remains "under review." Last week, more than 300 scientists and public health advocates urged the White House to release it.

OSHA has moved several topics to "Long-term Actions," defined as

"items under development but for which the agency does not expect to have a regulatory action within the 12 months after publication of this edition of the Unified Agenda."

These topics include:

Protecting workers from exposure to beryllium. OSHA had indicated its plan to conduct in May 2011 a peer review of its draft proposed economic analysis. Now that this item has been moved to OSHA's long-term action list, I wondered if they had in fact conducted this special review of the draft economic analysis. An OSHA spokesperson reported to me they had not, adding, the agency "recently received some new and significant information that has a direct impact on the economic analysis."

Protecting workers from the butter-flavoring agents diacetyl and 2,3-pentanedione. Last spring, OSHA indicated it planned to rely on a peer-reviewed risk assessment document on these chemicals that was being prepared by the CDC's National Institute for Occupational Safety and Health (NIOSH). OSHA projected that the peer review of the document would be completed by July 2011. This latest regulatory agenda merely says the next steps for this topic is "to be determined." An OSHA spokesperson reported that NIOSH has initiated, but not completed, the peer review process of the document.

Protecting workers from explosions caused by combustible dust. OSHA had projected in its Spring 2011 agenda that it would initiate the required small-business panel review (a.k.a. SBREFA process) in December 2011. OSHA is now indicating this stage in the rulemaking process will be delayed for at least a year.

Writing at Sustained Outrage, the Charleston (WV) Gazette's Ken Ward Jr. reminds us what then-Senator Barack Obama said about combustible dust after the February 2008 explosion that killed 14 workers. He said the slow pace of rulemaking at OSHA during the GW Bush Administration "puts workers' lives at risk." Ward's post entitled "Obama's OSHA puts protecting workers from dangers of combustible dust on back burner," received this comment from Chris Sherburne, whose husband Wiley, 42, died from a dust explosion at the Hoeganaes Corporation plant in Gallatin, TN:

"I truly hope these recommendations are not put on a back burner. Its very important to have regulations in place to try and prevent other families from experiencing the horrible tragedy that our family has."

Regrettably, the Obama Administration has put several of these rules have been put officially on the back burner, and time will tell whether the others will finish cooking and be served in 2012.

cmonforton Mon, 01/30/2012 - 09:00

White House regulatory czar fails to publish rulemaking plan and agenda

cmonforton — Tue, 03 Jan 2012 13:00:00 +0000

White House regulatory czar fails to publish rulemaking plan and agenda

When an organization fails to get the little things right, I have difficulty believing they are competent to get the big things right either. That's the way I feel about the White House's Office of Information and Regulatory Affairs (OIRA).

OIRA is part of the Office of Management and Budget (OMB), was created by the Paperwork Reduction Act of 1980, and is charged with reviewing certain proposed federal regulations and approving agencies' requests to collect data from the public. One of OIRA's responsibilities, as outlined in the 1993 Executive Order (EO) 12866, is coordinating the publication of the Administration's Regulatory Plan for the upcoming fiscal year. This document is supposed to be published in October to facilitate regulatory planning by affected parties and to make the rulemaking process more accessible to the public.

October 2011 is long gone, as is November and December, but the Obama Administration's regulatory czar has yet to publish the Regulatory Plan. When I asked OMB's press office on December 30 when OIRA expects to issue the document, no one with information about the plan was at work that day. The Obama Administration's reg czar is now the first in history to miss not only the October deadline, but to fail to publish altogether in a calendar year its Regulatory Plan.

Since the time EO 12866 was issued in 1993, 18 annual Regulatory Plans have been published. The Clinton Administration met the October deadline twice, and published the remaining six of its eight plans in November. The GW Bush Administration's regulatory czar only met the October deadline once, publishing six of its eight plans in December, and one in November. The Obama Administration is two-for-two missing the October deadline, publishing its 2009 and 2010 regulatory plans on December 7 and December 20, respectively.

As the Center for Progressive Reform (CPR) reminds us, missing deadlines is not the only example of mismanagment and overreach by OIRA. In a March 2010 letter to the White House Counsel's office, CPR scholars provide example after example of OIRA's violations of its authority. These include OIRA's failure to make public all documents exchanged between itself and agencies during its review of propsed rules and insisting on reviewing and approving of agency guidance documents and other materials not covered by EO 12866. I've written about OIRA's failure to follow its own rules for disclosing the meetings it's hosted with private interests about proposed agency rules.

Admininstration officials, including the OIRA director Cass Sunstein, say they have been transforming the federal regulatory system. They insist their reforms emphasize transparency, predictability and certainty. It's difficult to see how that jives with OIRA's performance, including the simple task of meeting the deadline for publishing an annual Regulatory Plan.

cmonforton Tue, 01/03/2012 - 08:00

Industry influence and White House obstacles hamper rules to protect health, safety and environment

cmonforton — Mon, 28 Nov 2011 16:00:00 +0000

Industry influence and White House obstacles hamper rules to protect health, safety and environment

A new report by the Center for Progressive Reform (CPR) confirms what some of us have suspected: there's not much difference between the Obama Admininstration's and GW Bush Administration's Office of Information and Regulatory Affairs (OIRA) when it comes to meetings with industry lobbyists and giving lip-service to transparency.

In "Behind Closed Doors at the White House," CPR offers a 10-year analysis of the 6,194 draft regulatory actions reviewed by OIRA, a step in the rulemaking process dictated by Executive Order (EO) 12866 for rules of particular significance. Their assessment examined the length of time for the OIRA review, the number of meetings held by OIRA staff with interest groups, and the affiliations of meeting participants. CPR also explores OIRA's interference in agency actions not covered by EO 12866 and its failure to comply with public disclosure requirements. Most importantly, CPR explains how OIRA's involvement in agency rulemaking circumvents congressional intent and delays public protections.

Among CPR's many interesting findings, they report:

Sixty-five percent of the 5,759 meeting participants who met with OIRA represented industry interests---about five times the number of people appearing on behalf of public interest groups. CPR didn't find much difference between the GW Bush Administration and the Obama Administration when it comes to who was in these meetings. During the GW Bush Administration, 68% represented industry interests and 10% public interest. During the Obama Administration, about 62% represent industry interests and 16 percent public interests.

As I've written before, when agencies already offer lengthy comment periods, as well as many days (sometimes months) of public hearings----at which individuals can testify about the proposal (and at OSHA hearings even cross-examine other witnesses)----why does OIRA continue to host these extra-curricular meetings?? As CPR aptly notes:

"No matter how many similar meetings OIRA has already agreed to, or how lopsided the process becomes when most of the meetings are requested by regulated industries to complain about pending regulations, OIRA continues to grant meeting requests. There's no reason for them, and there should be no place for them in a process that already provides ample time and methods for any interest group to participate."

The percentage of meetings that occurred before a rule had even been proposed by the agency was higher during the Obama Administration (47 percent) than it was during the GW Bush Administration (39 percent). This may make a proposal more palatable politically, but as CPR explains:

"Early interference frustrates transparency and exacerbates the potential for agencies to succumb to White House political pressure before they have even had the opportunity to seek public comment on more stringent proposals."

Their report includes a variety of informative tables. One categorizes OIRA meeting participants by type of organization. At the top of the list was "individual companies" (550 in total) with second place a category called "trade associations/professional organizations" with 371 entities. There were far fewer participants at OIRA meetings representing environmental organizations (93 groups), public health and safety organizations (34 groups) and labor unions (16 groups). Another tables lists the meeting participants by affiliation and number of meetings over the 10-year period, with 94% of the appearances by individuals representing industry groups. These tables in particular illustrate the resources and time that individuals with economic interest in a regulatory matter will devote to influencing the rule's potential impact.

Over the last year, I've written a number of posts that illustrate the exact issues described in CPR's report. In September 2010, I chastised the director of OIRA for talking about transparency, but failing to disclose promptly on OIRA's website the names and affiliations of individuals who met with OIRA staff to discuss an OSHA proposed rule. I had to reprimand OIRA again in April 2011 for the same thing. In October 2010, I wondered why OIRA was reviewing a minor OSHA proposed rule when EO 12866 only requires OIRA review of rules defined as significant. In November 2010, I asked how much longer OIRA would be reviewing this non-signficant rule, and repeated my question in December 2010 when the 90-day review period marked its 145th day. I denounced OIRA in August 2011 for taking 9 months to review a proposed rule to protect young workers from safety hazards (which was finally released after two 17 year olds lost legs in a grain auger), and reported in October 2011 that OIRA refused my request to provide copies of all the communications it had with the Labor Department concerning this proposed rule. EO 12866 specifically states "OIRA shall make available to the public all documents exchanged between OIRA and the agency during the review by OIRA under this section." This is just one of the violations exposed in "Behind Closed Doors at the White House: How Politics Trumps Protection of Public Health, Worker Safety, and the Environment."

I concur with CPR's recommendations on improving transparency and timeliness at OIRA, and directing OIRA to focus on economically significant rules. I also agree with CPR's suggestions that OIRA end its practice of meeting with outside parties during its review of a proposed or final rules. The appropriate way for an Administration to receive public input on a proposed rule is during the public comment period. Period.

cmonforton Mon, 11/28/2011 - 11:00